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Can Neuroscience Enhance Justice?

“Can neuroscience enhance justice?” The question posed by Judith G. Edersheim, JD, MD, was the resounding theme of New England Law School Library’s recent LLNE conference. As Edersheim* explained, advances in functional brain imaging (e.g., “being able to ask a question and watch parts of the brain light up”) have vastly expanded the field of neuroscience. Interactive brain measurement could enhance legal fact-finding and sentencing. As presenter Amanda Pustilnik, JD (Yale Law School),** explained, “the law depends, in some part, on models of the mind...” That attachment is the driving force behind this new area of legal practice and scholarship.

We can trace this trend back to the 1770s, according to Pustilnik. In the dwindling days of the French enlightenment, Pierre Cabanis, Baron d'Holbach, and others (see Martin) proposed material bases for thought and action. Since then, brain science has ebbed and flowed. Pustilnik suggested that “we are again in a materialist moment.” But she also cautioned that if jurists simply layer social categories (e.g., “terrorist”) onto natural brain structures, they will fall short like their Parisian forefathers. “Culturally constructed crimes cannot be mapped onto neural substrates,” she explained. Neural jurisprudence faces further limitations, according to Edersheim.

The use of brain images in court cases –particularly to abrogate criminal intent– is rarely advisable, according to Edersheim, because: scanners are indirect measures of how millions of neurons are firing; ‘average’ brains are statistically generated not anthropologically ‘discovered’; the colors used in scan output are artificially derived and can be misinterpreted (e.g., red doesn’t mean the tumor is malignant); we don’t yet know how much healthy parts of the brain can compensate for injured parts; neuroscience testimony can be more prejudicial than probative; compulsory brain scans might violate the 4th, 5th, and 14th Amendments; and more. Despite these cautions, she described a case in which neuroscience helped keep a relatively innocent man out of jail. But before we get to Mr. C. (that client), a revisionist history(-iography) of Julius Caesar might be the best case for the use of neuroscience in legal fact-finding.

The Ides of March might actually be lucky. At least that is what Harold J. Bursztajn, MD,*** would have us believe. For millennia, scholars have contended that Caesar fell prey to his enemies on that long-ago cursed day. But the full record undercuts that hypothesis. “A complete (patient) history always involves medical, legal, financial, physical, etc. evidence,” Bursztajn explained. In Caesar’s case, the record shows a man suffering from a degenerative form of epilepsy, embarrassed by his public incontinence, and well aware of the planned attack. That same ruler re-wrote his will shortly before the Ides, sent for his successor, cast off his guards, and walked to his death alone. “The Senate chamber was the worst place to assassinate anyone,” Bursztajn added. “It delegitimized the conspirators, it got Caesar his one last wish: immortality.” The revised story of Caesar, a passion of Bursztajn’s, is meant to drive home the larger point that neuroscience should be a constituent part of comprehensive bio-psycho-social fact-finding in medicine and the law. Edersheim concurs.

The case of Mr. C. takes up where Julius Caesar leaves off. Mr. C. was a well-regarded financial administrator who suddenly started hoarding his clients’ checks in a desk drawer. He neither spent nor bragged about the checks; he simply squirreled them away. Simultaneously, his squash buddy, a physician, noticed that Mr. C. could not return any ball hit to the northeast corner of the squash court. A brain scan revealed a tumor. It was removed and the strange behaviors stopped. Mr. C. could never explain why he kept those checks. The SEC suspended his license anyway, but prosecutors did not pursue the criminal case against him. “This was a good use of neuroscience,” Edersheim explained. “There was a focal neurological impairment, a known behavioral correlate, a clear before and after change, and the stakes were relatively low.” She contrasted this use of neuroscience evidence with “my brain made me do it” defenses of criminal behavior. Those defenses oversimplify the link between genes, proteins, brains, and behaviors. “Risk factors don’t cause behavior,” she emphasized. She added that juries and judges do not always know that: behavioral genetics research findings speak broadly about populations (i.e., not about individuals); that single genes do not explain/cause complex human social behaviors; that one’s environment affects and can alter one’s genes; that there is no linear pathway between genes and environmental stimuli; and more. Admitting those issues, the use of neuroscience in the law is still likely to grow, according to David Siegel**** and Wendy Wolf*****. In the case of juveniles, that might not be such a bad development.

If Julius Caesar and Mr. C.’s brains influenced their decision-making, wouldn’t we want to assess that evidence? In a series of recent decisions, the Supreme Court posed a similar (rhetorical) question. In Roper v. Simmons, 543 U.S. 551 (2005), Graham v. Florida (2010), J.D.B. v. North Carolina (2011), and Miller v. Alabama (2012), the court leveraged neuroscience to carve out exceptions for violent and non-violent juvenile criminal offenders (e.g., restrictions on life without parole and the death penalty). Recognizing that certain bio-cognitive processes are still in development during adolescence, the court concluded that “kids are different,” as some legal observers have summarized. Siegel regarded this application of neuroscience as promising because it: “focused on the culpability of a specific class of offenders (i.e., rather than all criminal defendants), recognized the societal goals of punishment (i.e., for youth), and reflected the practices of other states and countries.” Wolf agreed. She and Siegel posited that young people are less likely to understand the criminal process and effectively weigh plea bargains and other penalties. Of course, this is only partly due to neural development, they acknowledged. But there seems to be enough evidence to convince the high court that youth sentencing should take brain science into account.

Whether the convicted are juveniles or adults, Pustilnik explained, “this doesn’t mean that they are going to get off the hook. But their sentences could be mitigated by their diminished capacity…” Further, she and the other presenters explained, neuroscience could inform tort liability, evaluation of intent to execute a legal document, and more. “Can a 15-year old refuse cancer treatment? Get an abortion? Keep her child? Get a tattoo…?” Pustilnik offered. These determinations require a careful balancing of scientific evidence, legal precedent, the facts at hand, and liberty interests. In the nexus of these concerns lies one of the most fascinating frontiers in contemporary legal practice and scholarship. To learn more about neuroscience and the law, check out the library resources below and in the NESL Library neuroscience guide.

Neuroscience Conference Presenters:

*Co-director of the Center for Law, Brain and Behavior at Massachusetts General Hospital and Psychiatry professor at Harvard Medical School; **Associate Professor of Law at the University of Maryland School of Law and alumna of Yale Law School; ***Physician, senior clinical faculty at Harvard Medical School and co-Founder of the Program in Psychiatry and the Law at the Massachusetts Mental Health Center in the Department of Psychiatry at Harvard Medical School; ****Professor of Law and co-Director, Center for Law and Social Responsibility at New England Law School; *****Trial Attorney and Director of Training for the Youth Advocacy Division of the Committee for Public Counsel Services

Yale Law Library Resources, a selected bibliography

Freeman, Michael. (2011). Law and neuroscience: Current legal issues 2010. New York, NY: Oxford University Press.

Gideon, Yaffe. (2010). Attempts: In the philosophy of action and the criminal law. New York, NY: Oxford University Press.